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EXHIBIT 10.1
AMENDED AND RESTATED
▇▇▇▇▇▇ SHAREHOLDER AGREEMENT
THIS AMENDED AND RESTATED ▇▇▇▇▇▇ SHAREHOLDER AGREEMENT (this "Agreement")
is made as of this 26th day of June, 1997, among ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ and
▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (collectively, the "Founding Shareholders"), ▇▇▇▇▇ ▇▇▇▇▇▇,
NATIONSBANC INVESTMENT CORPORATION, a Delaware corporation ("NationsBanc"),
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Trustee under the ▇▇▇▇▇▇ Stock Trust dated December 28,
1996 ("Trustee") (the Founding Shareholders, ▇▇▇▇▇ ▇▇▇▇▇▇, NationsBanc and
Trustee are referred to herein collectively as the "Shareholders" and
individually as a "Shareholder"), and ▇▇▇▇▇▇ INTERNATIONAL INC., an Ohio
corporation (formerly known as ▇▇▇▇▇▇ Research Associates, Inc.) ("▇▇▇▇▇▇").
Background
A. This Agreement amends and restates in its entirety the ▇▇▇▇▇▇
Shareholder Agreement entered into on December 29, 1996, among the Founding
Shareholders, Trustee and ▇▇▇▇▇▇ ("Original Shareholder Agreement").
B. On December 29, 1996, the Founding Shareholders transferred to Trustee
stock in ▇▇▇▇▇▇. As a condition of such transfer, the Founding Shareholders
required the execution of the Original Shareholder Agreement and that such stock
transferred to Trustee (and any additional stock acquired by Trustee) be subject
to a right of first refusal and certain other rights as provided herein.
C. In connection with the consummation of the Investment Agreement between
▇▇▇▇▇▇ and NationsBanc of even date herewith ("Investment Agreement"), ▇▇▇▇▇▇
has agreed to (i) issue Common Stock Purchase Warrant ("Warrant") entitling
NationsBanc to purchase shares of ▇▇▇▇▇▇'▇ common stock, no par value per share
("Common Stock"), and (ii) amend and restate the Original Shareholder Agreement
to provide NationsBanc and the other Shareholders with certain rights and
benefits.
In consideration of the premises and the covenants and undertakings
hereinafter set forth, the parties hereto agree as follows:
1. PRESENT SHAREHOLDERS. ▇▇▇▇▇▇ represents that, as of the date hereof,
all of the shareholders of ▇▇▇▇▇▇ (and their respective ownership of Common
Stock on a fully diluted basis assuming exercise of all vested and exercisable
options to purchase Common Stock) are as set forth on Schedule 1 attached
hereto.
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2. TRANSFER RESTRICTIONS ON SHARES.
(a) Permitted Transfers. A Shareholder may transfer all or a portion
of its shares of Common Stock, the Warrant and shares of Common Stock underlying
the Warrant (collectively, the "Shares") to a spouse or children or to a trust
for the benefit of the Shareholder, a spouse or children (provided any such
transfer to a trust must be to a qualified trust which will not cause a
termination of ▇▇▇▇▇▇'▇ Subchapter S Corporation status under the Internal
Revenue Code (the "Code"); provided, however, that a condition to any such
transfer, the transferee must agree in writing that it, its heirs, successors
and assigns, shall be subject to and bound by the provisions of this Agreement.
(b) Right of First Refusal.
(i) Offer to Sell Shares. Except as provided in Section 2(a)
above, if any Shareholder (such Shareholder being hereinafter referred to as the
"Selling Shareholder") shall desire to sell all or any of the Shares now owned
or hereafter acquired by it, it must first receive a bona fide written offer to
purchase such Shares and then deliver to ▇▇▇▇▇▇ and the other Shareholders a
written notice ("Notice") containing the following information:
(1) The name and address of the prospective purchaser of
such Shares;
(2) The number of Shares that the Selling Shareholder
desire to sell;
(3) The price being offered to the Selling Shareholder
and the terms of payment, and any other terms of such offer; and
(4) The proposed closing date for the transaction, which
shall be within not less than sixty (60) nor more than one hundred
twenty (120) days after the date of delivery of the Notice.
For a period of thirty (30) days after the giving of the Notice by the Selling
Shareholder and subject to contractual restrictions on the Company, ▇▇▇▇▇▇ shall
have the option, exercisable in whole or in part by notice in writing to the
Selling Shareholder and to each of the other Shareholders, to purchase the
Shares that are proposed to be sold, at the price and upon the terms set forth
in the Notice. The Selling Shareholder shall have no right to vote as a
shareholder or director on the decision to exercise such option, and action on
such option may be taken by the holders of a majority of the outstanding Shares,
exclusive of the Shares held by the Selling Shareholder. A failure by ▇▇▇▇▇▇ to
give written notice of exercise during such period shall be deemed a rejection
by ▇▇▇▇▇▇ of its option to purchase.
(ii) Offer to Other Shareholders. If ▇▇▇▇▇▇ does not exercise
the option granted to it above with respect to any of the Shares that the
Selling Shareholder desires to sell
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hereunder, each of the other Shareholders shall then have the option to purchase
its pro rata portion of the Shares that will not be purchased by ▇▇▇▇▇▇ (based
on the number of Shares owned by such Shareholder (assuming exercise of the
Warrant) in relation to the total number of Shares outstanding, less all of the
Shares owned by the Selling Shareholder), at the price and upon the terms set
forth in the Notice. Such options shall be exercisable by written notice to the
Selling Shareholder and to each of the other Shareholders for a period of twenty
(20) days from the date of express rejection by ▇▇▇▇▇▇ of its option to purchase
or the date of expiration of ▇▇▇▇▇▇'▇ option, whichever is earlier. A failure by
a Shareholder to give written notice of exercise within such twenty (20) day
period shall be deemed a rejection by such Shareholder of its option to
purchase. If any Shareholder does not exercise its option to purchase all of the
Shares to which it is first entitled, each remaining Shareholder shall then have
the option to purchase all or any portion of the Shares that will not be
purchased by the Shareholders first entitled hereto, which option shall be
exercisable by notice in writing to the Selling Shareholder and to each of the
other Shareholder within ten (10) days after the date of express rejection by
such Shareholders or the expiration of the options to the Shareholders who did
not elect to purchase such Shares, whichever is earlier. If more than one (1)
Shareholder exercises this option, the Shares available for purchase shall be
allocated pro rata among the Shareholders desiring to purchase such Shares,
which allocation shall be based on the number of Shares owned by each such
Shareholder in relation to the total number of Shares outstanding, less all of
the Shares owned by the Selling Shareholder, and less of the Shares owned by any
Shareholder who does not exercise its option to purchase any such unpurchased
Shares. In determining the pro rata portion of the Shares that any Shareholder
is entitled to purchase, the Shares owned by a Shareholder shall be neither
increased nor decreased by reason of any Shares to be purchased from or sold by
the Selling Shareholder.
(iii) Non-Cash Consideration for Shares. If any consideration
to be received by a Selling Shareholder from a prospective purchaser of its
Shares, as identified in a Notice given in compliance herewith, is property
other than cash, then the price per share for such Shares shall be measured to
that extent by the fair market value (determined as hereinafter provided) of
such non-cash consideration. If non-cash consideration has been offered to a
Selling Shareholder, ▇▇▇▇▇▇ and the other Shareholders, if such parties or any
of the exercise their option(s) to purchase the Selling Shareholder's Shares,
may deliver to the Selling Shareholder, in payment of the non-cash portion of
the purchase price for the Shares proposed to be sold, an amount of cash equal
to the fair market value of the non-cash consideration that has been offered to
the Selling Shareholder. For purposes hereof, the "fair market value" of
non-cash consideration shall in each case be agreed upon by the Selling
Shareholder and the party purchasing its Shares as provided in this Agreement,
or, in the absence of such agreement, such "fair market value" shall be
determined by an appraisal thereof by three (3) independent qualified
appraisers, one being selected by the Selling Shareholder, one (1) being
selected by the party hereto desiring to purchase the Selling Shareholder's
Shares, and the third appraiser being chose by the two (2) appraisers thus
chosen. The cost of any such appraisal shall be borne equally by the parties to
the appraisal proceeding. Any closing provided for herein may be extended for
such reasonable period of time as may be necessary in order for a required
appraisal to be completed. In the even of an appraisal pursuant to this Section
2, the parties agree to be bound thereby.
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(iv) Closings If ▇▇▇▇▇▇ or any Shareholder shall exercise an option
to purchase granted to such parties in this Section 2, the closing of the
purchase and sale transaction shall be held at the principal office of ▇▇▇▇▇▇ on
a date designated by the purchaser or purchasers, which date in no event shall
be later than ninety (90) days after the Selling Shareholder gives the Notice.
If there is more than one (1) purchaser of the Shares being sold, the Selling
Shareholder may require that all purchases close concurrently on the same date.
(v) Right to Transfer. if ▇▇▇▇▇▇ and the other Shareholders do not
elect to purchase all of the Shares that a Selling Shareholder desire to sell,
no election to purchase a portion of such Shares shall be effective, and the
Selling Shareholder shall have the right to sell all, but not less than all, of
the Shares covered by the bona fide offer to the prospective purchaser named in
the Notice, (2) Section 2(a)(iv) above and (3) Section 2 (a)(vi) below. In
addition, as a condition to any such sale, the purchaser of the Shares must
agree in writing that it, its heirs, successors and assigns, shall be subject to
and bound by the provisions of this Agreement.
(vi) Right to Co-Sale. In the event the Selling Shareholder proposes
to dispose of its Shares to a third party, except as permitted under this
Section 2(b), the other Shareholder shall have the right to offer and sell a
proportionate number of Shares to the third party acquiring the Selling
Shareholder's Shares, on the same price and on the same terms as outlined in the
Notice (the "Co-Sale Right"), in accordance with the following procedure:
(1) The Selling Shareholder shall, prior to sale, give notice
to the other Shareholders of their Co-Sale Right.
(2) The other Shareholder shall have fifteen (15) days after
receipt of such notice to determine if they desire to offer Shares to the
third party acquiring the Selling Shareholder's Shares. In the event any
Shareholder elects not to exercise its Co-Sale Right and offer and sell
its proportionate interest, the remaining Shareholders, other than the
Selling Shareholder, shall be entitled for sale such Shares on a pro rata
basis.
(vii) Prohibited Transfers Void. Any purported transfer of Shares in
violation of this Agreement shall be void and shall not transfer any interest or
title to any Shares to the purported transferee. ▇▇▇▇▇▇ shall not be required to
transfer on its books any Shares sold or transferred in violation of any of the
provisions set forth in this Agreement or to treat as owner of those Shares or
to pay dividends to any transferee to whom any of those Shares shall have been
so sold or transferred.
(c) Special Purchase Right Upon Private Sale by Founding Shareholders.
(i) Purchase of Shares from Trustee. Notwithstanding Section 2(b),
in the event the Founding Shareholders desire to sell all of their shares of
▇▇▇▇▇▇, the Founding Shareholders shall have the right (but shall not be
obligated) to purchase from the Trustee and the Trustee shall be obligated to
sell to the Founding Shareholders all of the Shares held by the Trustee. Such
notice shall state the closing date for the purchase. The founding Shareholders
may assign this right to the
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purchaser of such Shares. The price paid by the Founding Shareholders to the
Trustee for each Share purchased shall be equal to the average price per share
received by the Founding Shareholders from the person purchasing such Common
Stock but not less than "Fair Market Value" (as defined below.
For purposes of this Agreement the "Fair Market Value" of the Shares on
any day shall mean the average closing price of the Shares for the 30
consecutive trading days preceding such day on the principal national securities
exchange or NASDAQ National Market System on which the Shares are listed or
admitted to trading or, if not listed or admitted to trading on any national
securities exchange, the average of the reported closing bid and asked prices
during the day period in the over-the-counter market as furnished by the
National Quotation Bureau, Inc., or, if the Shares are not publicly traded, the
"Appraised Market Value" (as defined below), provided, however, that the Fair
Market Value for a Share sold pursuant to a public offering by ▇▇▇▇▇▇ shall be
deemed to be the price received by ▇▇▇▇▇▇ for such share.
The "Appraised Market Value" shall mean the market value of
the Shares as agreed by Trustee and the Founding Shareholders hereof, or if the
Trustee and the Founding Shareholders cannot agree, as determined by a valuation
by an investment banking company suitable to the Trustee and the Founding
Shareholders. In the event the parties cannot agree on an investment banking
company to perform the valuation described above, ▇▇▇▇▇▇ and the Founding
Shareholders shall each select an investment banking company and the two
investment banking companies so selected shall select a third investment banking
company which shall determine the market value. The fees and expenses of the
investment banking companies shall be borne by ▇▇▇▇▇▇.
(ii) Loans to ▇▇▇▇▇▇. The Trustee understands and agrees that
▇▇▇▇▇▇ may from time to time need loans to provide working capital for
operations and to finance ▇▇▇▇▇▇'▇ continued growth. The Trustee agrees that,
upon request by the Founding Shareholders, it will provide to ▇▇▇▇▇▇ loans as
requested and determined by the Founding Shareholders. The terms of such loans
shall be upon prevailing rates and terms for such type of transaction. In
addition, the Founding Shareholders may request the Trustee to pledge the Shares
held hereunder to secure any loans made to ▇▇▇▇▇▇. The Founding Shareholders and
the Trustee acknowledge that the Shares have been previously pledged to certain
senior lenders under the credit facility of ▇▇▇▇▇▇ dated June 26, 1996. In the
event of a foreclosure on the pledge, the Founding Shareholders will replace the
Shares with cash, other property, Common Stock or other securities of ▇▇▇▇▇▇.
The value of such replacement property shall be the Fair Market Value of the
Shares.
(iii) Additional Rights. The Trustee agrees, upon request from
the Founding Shareholders, to either sell to ▇▇▇▇▇▇ or exchange with the
Founding Shareholders or ▇▇▇▇▇▇ the Shares held by the Trustee hereunder. The
consideration for such sale or exchange may be for cash, other property, Common
Stock or other ▇▇▇▇▇▇ securities. The purchase price or exchange value shall be
the Fair Market Value.
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3. PREEMPTIVE RIGHTS.
(a) Preemptive Rights of Shareholders. If, at any time, ▇▇▇▇▇▇
proposes to issue (except in a transaction described in Section 3(b) below) any
of its equity securities (including the Shares) or any securities convertible
into or having the rights to purchase any equity securities (including the
Shares) to any person or entity (which may include a Shareholder) (collectively,
"Equity Securities") other than stock options issued to any Shareholder which
are approved by all the disinterested members of the Board of Directors, then,
in such event, ▇▇▇▇▇▇ shall first offer in writing to sell all such Equity
Securities, on the same terms and conditions as proposed by ▇▇▇▇▇▇ to such
person or entity, to the Shareholders. Each Shareholder shall then have the
option to purchase its pro rata portion of the Equity Securities proposed to be
issued (based on the number of Equity Securities owned by such Shareholder, on a
fully diluted basis and assuming exercise of the Warrant, in relation to the
total number of the Equity Securities then outstanding), at the price and upon
the terms set forth in such writing. Such options shall be exercisable by
written notice to ▇▇▇▇▇▇ for a period of fifteen (15) days from the date of such
offer. A failure by a Shareholder to give written notice of the exercise within
such fifteen (15) day period shall be deemed to be a rejection by such
Shareholder of its option to purchase. To the extent that any of the
Shareholders elect not to purchase the full amount of Equity Securities they are
entitled to purchase pursuant to this Section 3(a), the other Shareholders'
rights to purchase Equity Securities pursuant to this Section 3(a) shall be
increased by their pro rata portion, up to the maximum quantity of each class of
Equity Securities set forth in their respective notices to ▇▇▇▇▇▇. The closing
of the purchase of Equity Securities by the Shareholders shall take place within
fifteen (15) days after the expiration of said fifteen (15) period. ▇▇▇▇▇▇ shall
have sixty (60) days from the closing of the purchase of Equity Securities by
the Shareholders to sell the unsold portion of the Equity Securities to other
purchasers, but only upon terms and conditions that are in all material respects
no more favorable to such purchasers or less favorable to ▇▇▇▇▇▇ than those set
forth in the Equity Securities offering. In the event that the sale of the
unsold portion of Equity Securities is not consummated within such sixty (60)
day period, ▇▇▇▇▇▇'▇ right to sell such unsold Equity Securities shall be deemed
to lapse, and any sale of Equity Securities without additional notice to the
Shareholders as provided for in this Section 3(a) shall be deemed to be in
violation of the provisions of this Agreement.
(b) Excluded Transactions. The following transactions shall be
excluded from the restrictions of this Section 3:
(i) Any issuance to a non-Shareholder employee of ▇▇▇▇▇▇ of
stock options to purchase shares under a bona fide stock option plan or
agreement approved by the disinterested members of the ▇▇▇▇▇▇'▇ Board of
Directors;
(ii) An underwritten initial public offering of the Shares
under the Securities Act of 1933, as amended; and
(iii) An issuance to a former stockholder of gmi (as defined
in the Investment Agreement); provided that such issuance is made at "fair
market value" and in compliance with the Investment Agreement.
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4. ENDORSEMENT ON SHARE CERTIFICATES. Upon the execution of this
Agreement, the certificates of Common Stock subject to this Agreement and any
other Shares of stock transferred or issued shall be endorsed as follows:
"This Certificate is transferable only upon compliance with the
provisions of the Amended and Restated ▇▇▇▇▇▇ Shareholder Agreement
dated as of June 26, 1997, a copy of which is on file in the office
of the Secretary of ▇▇▇▇▇▇ International Inc."
5. TERMINATION OF AGREEMENT. This Agreement shall terminate upon the
earlier of (a) the consummation of an initial public offering of any of its
Shares, (b) the liquidation of the Company and (c) in accordance with Section 8
below.
6. AGREEMENT BINDING. This Agreement shall inure to the benefit of and be
binding upon the Shareholders and each of their heirs, successors and assigns.
It shall also be binding upon any transferee and their heirs, successors and
assigns of such transferee who has received any Shares.
7. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the parties as to the subject matter herein contained, superseding any and all
prior or contemporaneous oral and prior written agreements, understandings,
letters of intent or commitment letters.
8. AMENDMENT OR TERMINATION OF AGREEMENT. This Agreement may be amended or
terminated by the consent of all of the Shareholders and ▇▇▇▇▇▇.
9. NOTICES. Whenever a notice is required to be given under this
Agreement, such notice shall be given by registered or certified U.S. mail,
postage prepaid, to the following addresses:
If to ▇▇▇▇▇▇:
▇▇▇▇▇▇ International Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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If to a Founding Shareholder:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
c/▇ ▇▇▇▇▇▇ International, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/▇ ▇▇▇▇▇▇ International, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to Trustee:
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇ International, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to ▇▇▇▇▇ ▇▇▇▇▇▇:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
If to NationsBank:
NationsBanc Investment Corporation
NationBank Corporate Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Such notice shall be effective when received.
10. JURISDICTION. This Agreement is made pursuant to, and will be governed
by and construed in accordance with, the laws of the State of Ohio applicable to
contracts executed and to be performed wholly within such state. Each of the
parties hereby (a) irrevocably consents and agrees that any legal or equitable
action or proceeding arising under or in connection with this Agreement shall be
brought exclusively in any federal or state court within the County of ▇▇▇▇▇▇▇▇,
State of Ohio; (b) by execution and delivery of this Agreement, irrevocably
submits to and accepts
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with respect to its properties and assets, generally and unconditionally, the
jurisdiction of the aforesaid courts, and irrevocably waives any and all rights
it may have to object to such jurisdiction under the Constitution or laws of the
State of Ohio or the Constitution of the United States or otherwise; and (c)
irrevocably consents that service of process upon it in any such action or
proceeding shall be valid and effective against it if made in the manner
provided herein for delivery of notices hereunder.
11. INVALIDITY. If any portion or portions of this Agreement shall be
adjudged, declared, held, or ruled to be invalid for any reason, such invalidity
shall not be deemed to impair the validity of any other provision of this
Agreement.
12. GENDER AND NUMBER REFERENCES. All references to any gender shall
include all genders; all references to the singular shall include the plural;
and all references to the plural shall include the singular, unless the context
indicates otherwise.
IN WITNESS WHEREOF, the Shareholders and ▇▇▇▇▇▇ have signed this Agreement
as of the day and year first above written.
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ KENLDE
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▇▇▇▇▇ ▇▇▇▇▇▇
NATIONSBANC INVESTMENT CORPORATION
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
▇▇▇▇▇▇ STOCK TRUST
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Trustee
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▇▇▇▇▇▇ INTERNATIONAL INC.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman
and Chief Executive Officer.
